Uppsala University European Master’s Degree in Human Rights and Democratisation A.Y. 2013/2014 European Union’s attitude towards reproductive rights: clear policy or double standards approach? Author: Grazia Redolfi Supervisor: Lotta Lerwall Abstract Reproductive rights have only recently, and not unanimously, been recognized in the international arena, as a legitimate application of the human rights discourse to reproduction and sexuality. The international conferences held in Cairo and Beijing contributed to the formalisation of this concept and supported the shift towards a paradigm that considers reproduction as an autonomous choice. The scope of this dissertation has been to analyse how reproductive rights have been approached by the European Union in its relations with the Member States and with Third countries, in order to evaluate the extent of coherence between these two approaches. While on health protection, the EU clearly lacks a competence to act; in terms of human rights, a number of existing provisions could potentially be applied to reproduction, but this process will depend from the interpretative work of the European Courts. The EU’s cautious approach within its borders has been counterbalanced by an assertive endorsement of reproductive rights as human rights in its external policies, through the adoption of a number of instruments and through the translation of this commitment into its development policy. An outline of the potential consequences of this double standards approach in terms of human rights protection will be provided, to support the necessity of a more coherent EU’s action. Table of Acronyms CEDAW Convention on the Elimination of All Forms of Discrimination against Women CFREU Charter of Fundamental Rights of the European Union CJEU Court of Justice of the European Union ECtHR European Court of Human Rights ECHR European Convention on Human Rights EU European Union HRC Human Rights Committee ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights IVF In Vitro Fertilisation MDG Millennium Development Goals RR Reproductive Rights SRR Sexual and Reproductive Rights SRHR Sexual and Reproductive Health and Rights STIs Sexually Transmitted Infections TEU Treaty on European Union TFEU Treaty on the Functioning of the European Union UDHR Universal Declaration of Human Rights UN United Nations Table of Contents 1. INTRODUCTION 1 2. REPRODUCTIVE RIGHTS: WHEN HUMAN RIGHTS MEET SEXUALITY AND REPRODUCTION 5 2.1. Origin and evolution of reproductive rights as a concept 5 2.2 Are reproductive rights human rights? Health-based approach versus rights- based approach 11 2.3 The rights-based approach applied to reproduction 17 2.3.1 Right to life and right to health 17 2.3.2 Right to private and family life 21 2.3.3 Freedom of expression 23 2.3.4 Right to education 25 2.3.5 Right to equality and non-discrimination 26 2.3.6 The right to know: knowledge applied to reproduction 28 3. THE EU APPROACH TOWARDS REPRODUCTIVE RIGHTS: A MISSING COMPETENCE OR REPRODUCTIVE RIGHTS AS FUNDAMENTAL RIGHTS? 31 3.1 Reproduction and human rights in the EU system 32 3.1.1 Reproductive rights in the CFREU and in the ECHR 32 3.1.2 Reproductive rights in the jurisprudence of the European Courts 37 3.1.3 Information and education concerning reproduction in the Court’s jurisprudence 40 3.2 Reproduction as a public health issue in the EU 49 3.3 The Estrela report: a failed conjunction of health and human rights 52 4.THE EUROPEAN UNION’S APPROACH TOWARDS REPRODUCTIVE RIGHTS IN ITS RELATIONS WITH THIRD COUNTRIES. 57 4.1 The EU’s commitment concerning reproductive rights on the international stage 57 4.1.1 The Cairo Programme and the +5 Key Actions 58 4.1.2 The Beijing Platform of Action: women’s rights as human rights 63 4.2 EU’s approach towards reproductive rights in its development policy 65 4.2.1 Legal basis for the EU’s external aid on reproductive issues 66 4.2.2 The Investing in People programme 69 4.2.3 From theory to practice: reproductive rights in the Investing in People projects 71 5. CONCLUSION 76 BIBLIOGRAPHY 82 ANNEXES 103 1. Introduction During its October 2013 session, the plenary of the European Parliament sent back a report on sexual and reproductive health and rights1, whose text called inter alia for safe and legal abortion services (para.33); comprehensive sexuality education (para.39); teaching about negative lesbian, gay, bisexual, transgender, intersexual (LGBTI) stereotypes (para.51); and the prevention and treatment of sexually transmitted infections (STIs) (para.55). Before the vote, the Report had become the focus of an intense lobbying campaign by religious and conservatives groups that suggested, for instance, that the report would force Member States to change abortion rules, or include mandatory teaching about masturbation to 0-4 year-olds.2 Nevertheless, in the same plenary session, the Parliament adopted a Resolution on human rights in the Sahel region3 that called on the Commission, the European External Action Service (EEAS) and the Council “to encourage more countries in the region to make explicit statutory provisions for women’s and girls’ rights and to prioritise programmes that would secure those rights, in particular access to public services, including in the field of education, access to health, sexual and reproductive rights” (para. 86). This temporal coincidence provides with a hint about the difficulties of the European Union (EU) and its Member States in facing a sensitive topic such as sexual and reproductive rights. Its adhesion to the European Charter of Fundamental Rights and other international human rights instruments, force the Union to stand against violations of human rights also in the field of sexuality and reproduction. On the other side, the 1 European Parliament Committee on Women's Rights and Gender Equality, Report on Sexual and Reproductive Rights, 3 December 2013, A7-0426/2013. The text had been authored by Edita Estrela, a Portuguese parliamentarian, and presented on behalf of the Committee on Women’s Rights and Gender Equality. 2 European Parliament Intergroup on LGBT rights, Religious and political conservatives block vote on reproductive health and rights report, 2013. A revised Report has been proposed afterwards to the Parliament in December and it has been rejected, while a new Resolution stating that “the formulation and implementation of policies on sexual and reproductive health and rights and on sexual education in schools is a competence of the Member States” was approved. European Parliament, Resolution on Sexual and reproductive health and rights, Amendment 2, 10 December 2013, P7_TA (2013)0548, para.1. 3 European Parliament, Resolution on the situation of human rights in the Sahel region, 22 October 2013, P7_TA (2013)0431. 1 fierce opposition of Member States against the involvement of the Union in what is considered an internal matter and the strong lobbying by a part of the civil society tell to Bruxelles that there is a wide gap between what is intended for human rights by the different stakeholders when it comes to sexuality and reproduction, and that formal adhesion to human rights law instruments is not expected to give birth to practical commitments when it comes to these issues. Yet, the involvement of the Union on these topics in its external relations has been continuous and relevant. Not only, as depicted above, through political recommendations to States for a greater effort in this direction, but also through its development policy and aid delivery. This alleged schizophrenia and the more general attitude of the EU towards reproductive rights are the object of this dissertation. The purpose of the thesis is to analyse the position hold by the EU on reproductive rights in its internal and external relations, to evaluate to what extent coherence between the two approaches is guaranteed. The necessity of coherence between what is done within and outside the EU border has been underlined in numerous occasions by the EU institutions4, and it has been described as one of the grounds upon which the EU “substantial political and moral weight” rests.5 This guarantees, in turn, influence and leverage, which can be deployed “on behalf of human rights and democratisation”.6 The second chapter will give a brief overview over the concept of reproductive rights, its birth, evolution and employment in the international agenda, in order to better define the content of this theoretical construct. To do so, a short parallel analysis of the concept of sexual rights will be done, given the strong interrelation between the two concepts that is furthermore tangled by a contradictory use of the terms by different stakeholders. 4 See, inter alia, Commission of the European Communities, Communication from the Commission to the Council and the European Parliament, on The European Union’s role in promoting human rights and democratisation in Third countries, 8 May 2001, COM(2001) 252 final, p.3; Council of the European Union, EU Annual Report on Human Rights 2001, pp.45-46; and European Parliament Committee on Civil Liberties and Internal Affairs, Annual Report on Respect for Human Rights in the European Union (1997), 2 December 2008, A4-0468/98, para. 2. 5 Commission of the European Communities, Communication from the Commission to the Council and the European Parliament, on The European Union’s role in promoting human rights and democratisation in Third countries, 8 May 2001, COM(2001) 252 final, pp. 3-4. 6 Ibidem. 2 A key phase of the outlined process will then be analysed, that is to say the transition in the approach towards reproduction, that led to see reproduction not anymore as merely a health issue but also as the object of human rights concern.